Surat Singh vs Union Of India And Anr.
2008 Latest Caselaw 2019 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI


%                               Date of reserve: 31.10.2008

                                Date of decision: 17.11.2008

+      WPC No. 2511/1989


       SURAT SINGH                              ..........Petitioner
                                Through: Mr. Rishikesh, Advocate


                                  Versus

       UNION OF INDIA & ANR.             .........Respondents

Through: Gaurav Duggal, Advocate

CORAM:

     HON'BLE MR. JUSTICE SANJAY KISHAN KAUL
     HON'BLE MR. JUSTICE MOOL CHAND GARG

1.     Whether the Reporters of local papers
       may be allowed to see the judgment?               Yes

2.     To be referred to Reporter or not?                Yes

3.     Whether the judgment should be                    Yes
       reported in the Digest?

MOOL CHAND GARG,J

1. The petitioner joined services as Security Guard in Central

Industrial Security Force (in short "CISF") on 11.02.1977. He was

later designated as Constable. On 5.12.1985 his Commandant

issued him a Charge Sheet containing the following two charges;

"Charge No.I

No. 7736134 Constable Surat Singh of CISF Unit PPT Paradip is charged with gross indisciplined conduct in that while deployed at Fishing Gate for „B‟ shift duty on and 27.10.85, he deserted the duty post at about 1900 hrs and was found quarreling with a tempo driver in an indisciplined manner attracting a large number of the public

Charge No. II

No. 7736134 Constable Surat Singh of CISF Unit P.T. Paradip is charged with grave misconduct in that on 30.10.85 at about

2150 hrs when checked by Shri B.S. Das Mahapatra, Asstt. Commandant No. 7736134 Constable Surat Singh was found in possession of loose coins and currency notes amounting to Rs. 21.40 from his own pocket in contravention of this office order No. E-42013/1/84/Adm-5350 dated 13.11.84 at the fishing gate where he was deployed for „B‟ shift duty on 30.10.85. He failed to give any satisfactory account about the possession of extra cash in his possession to Asstt. Commandant B.C. Das Mahapatra."

2. Since the written statement of the petitioner was not found

satisfactory, the Commandant directed holding of an enquiry

against the petitioner under Rule 34 of the CISF Rules in respect

of the aforesaid charges by the Assistant Commandant. The

Enquiry Officer exonerated the petitioner of the First charge, but

found him guilty of the second charge. The Commandant, based

upon the report of the enquiry officer and taking into

consideration his past record, sentenced him to be dismissed

from service on 16th January, 1987. An appeal filed against the

aforesaid order was dismissed by the Deputy Inspector General,

CISF, Eastern Zone vide order dated 10.6.1987. The revision

petition filed by the petitioner also met the same fate as it was

also dismissed by the Inspector General vide orders dated

16.9.1988. The petitioner claims to have also filed another

petition under Article 49 of the CISF Rules, 1969 on 1.12.1988

(though denied by the respondents) but it was of no avail. The

petitioner by way of filing the present writ petition has prayed for

the issuance of appropriate writ/direction for quashing his

conviction and sentence of dismissal and has also prayed for his

reinstatement in service with all consequential benefits.

3. The learned counsel appearing for the petitioner has

assailed the punishment of dismissal in respect to the second

charge and submitted that the punishment was not sustainable

for the following reasons:-

i) No show cause notice was served upon the petitioner before

imposing the punishment of dismissal (a major punishment)

though required under Rule 34(10)(ii)(b)(c) of the CISF Rules

framed under the CISF Act, 1969 (for short 'the Act').

ii) The Office Order dated 31.11.1984 allegedly violated by the

petitioner had been issued by the Commandant, who had no

authority or jurisdiction to issue such an order, instructions

or directions in as much as, it tantamounts to exercising

powers to frame laws or amend the laws enacted by the

Parliament.

iii) Even otherwise, taking into consideration the provisions of

Section 8 of the Act, the aforesaid punishment ought not to

have been inflicted upon the petitioner merely because he

was found in possession of an amount more than the

permissible limit at the time of his search, which is not an

offence involving moral turpitude or involving the petitioner

in some corruption charges and, therefore, could not have

been subject of awarding major punishment.

iv) Petitioner has made a reference to the judgments of the

Hon'ble Supreme Court in Raj Kumar Vs. Union of India, AIR

1969 SC 180 and Kerala Financial Corporation Vs.

Commissioner of Income-Tax, AIR 1994 SC 2416.

4. On the other hand, the respondents justified the

punishment awarded to the petitioner primarily on the ground of

the punishments imposed upon him under the CISF Rules on 8

occasions prior to the incident in question. They have detailed

those incidents and the punishments awarded as follows:-

"i) Being found guilty of the charge of grave indiscipline in that he was found sleeping while on duty, he was awarded the punishment of „ stoppage of increment for one year‟ vide commandant, CISF Unit, FCI Sindri Order No. V-15012/1/78/Admn.I/159 dated 26.5.1978.

ii) Being found guilty of charge of grave indiscipline and misconduct in that while under influence of liquor he quarreled with Security Guard Hardwari lal and created nuisance in camp, he was awarded the punishment of „Stoppage of one increment for one year with cumulative effect‟ vide Unit Service Order Part, II No. 78/79 dated 24.11.1979 of CISF Unit, FCI Sindhri.

iii) Being found guilty of charge of grave misconduct in that he flatly refused to accept the official letter he was awarded the punishment of "Censure" vide Unit Service Order Part-II No. 582/80 dated 13.9.1980 of CISF Unit, Rourkela Steel Plant, Rourkela.

iv) Being found guilty of charge of grave misconduct in that he did not turn up to perform "B" shift duty on 15.4.1980 and was found lying on his cot fully drunk and used filthy languages and assaulted his superior, for which he was awarded the punishment of „stoppage of increment for a period of two years without cumulative effect‟, vide Unit Service Order Part-II No. 581/80 dated 13.9.1980 of CISF Unit, R.S.P. Rourkela.

v) Awarded the punishment of „fine equal to 02 days pay for sleeping at at the duty post on 20.8.1981 vide Unit Service Order Part-II No. 113/1981 dated 1.11.81 of CISF Unit, FBP Farakka.

vi) Awarded the punishment of „Stoppage of one increment without cumulative effect for sleeping on duty, vide CISF Unit, FBP Farakka order No. V- 15015/Admn./FBP/6620 dated 31.10.1981.

vii) Awarded the punishment of „pay fine equal to one day‟ for absenting from morning parade on 14.2.86 vide Unit Service Order Part.II No. 119/86 dated 27.11.86 of CISF Unit, PPT Paradip.

Viii) Awarded the punishment of „Censure‟ for absenting from his duty post on 29.9.1986, vide order No. V-15011/1/86/Disc./F.O./7175 dated 18.12.86 of CISF Unit, PPT Paradip."

5. It is submitted that in respect of the second charge there is

no dispute that the petitioner was found in possession of a sum of

Rs. 21.40 while on duty which is contrary to the order issued in

this regard by the Commandant and for which he failed to give

any satisfactory explanation. It has been submitted that the

punishment was in accordance with the provision of Section 8 of

the Act which inter alia provides that any supervisory officer may

dismiss any enrolled member of the Force whom he thinks remiss

or negligent in the discharge of his duty or unfit for the same.

Section 8 of the Act is reproduced hereunder:

"8. Dismissal, removal etc. of enrolled members of the Force :- Subject to the provisions of article 311 of the Constitution and to such rules as the Central Government may make under this Act supervisory officer may -

(i) dismiss, remove, order of compulsory retirement or reduce in rank any "enrolled" member of the Force whom he thinks remiss or negligent in the discharge of his duty, or unfit for the same; or

(ii) award any one or more of the following punishments to any "enrolled" member of the Force who discharge his duty in a careless or negligent manner, or who by any act of his own renders himself unfit for the discharge thereof, namely:-

(a) fine to any amount not exceeding seven days pay or reduction in pay scale;

(b) drill, extra guard, fatigue or other duty.

(c) removal from any office or distinction or deprivation of any special emolument.

(d) withholding of increment of pay with or without cumulative effect.

(e) withholding of promotion.

(f) Censure"

6. It is submitted that the second charge attracted provision of

Section 8 of the Act, 1968 and as such the penalty was imposed

upon the petitioner.

7. Thus, the respondents have also submitted that Rule 34 of

the Rules framed under the CISF Act, 1968 was amended in 1982,

i.e., prior to the date when the petitioner was held guilty of the

second charge and in accordance with the said rule, there is no

requirement to give any notice to the petitioner before inflicting

the penalty of dismissal upon him. Reference has been made to

the amended rule. Sub-Rule 10(i) of which reads as under:

(10)(i) If the disciplinary authority, having regard to its findings on the charges is of the opinion that any of the penalties specified in Cls. (a) to (h) of rule 31 should be imposed, it shall pass appropriate orders in the case.

8. We have heard the submissions made by learned counsel

for the parties. It may be observed that the scope of interference

by this Court in respect of any departmental enquiry/Court

Martial proceeding is limited to the extent of holding a judicial

review so as to examine if there is any violation of the statute or

the rules framed thereunder and further to find out if the process

adopted in convicting and sentencing the accused does not suffer

from any bias or mala fide which may vitiate the trial.

Interference is also called for if the sentence imposed upon the

accused is found to be shockingly disproportionate. Thus, there

being no dispute that the petitioner was found in possession of a

sum of Rs.21.40 which is a violation of an administrative

instruction issued by the authorities which have been issued so

as to ensure that there is no corruption or that corruption is

checked, no infirmity can be found insofar as the findings of

enquiry officer is concerned.

9. On a perusal of Section 8 of the Act and Rule 34 framed

thereunder, it cannot be disputed that the punishment of

dismissal can be imposed upon an accused held guilty of the

charges leveled against him if the competent authority thinks

that the accused was remiss or negligent in discharge of his duty

or was found unfit for the same.

10. During the course of argument, the learned counsel for the

petitioner emphasized that in the present case, there was no

occasion to have imposed the punishment of dismissal against

the petitioner which is not only excessive, vindictive, harsh,

exorbitant but is also grossly disproportionate to the charges

leveled against him and is not commensurate with the gravity of

the alleged offence and as such the said punishment is liable to

be quashed and set aside. In this regard, the petitioner has

relied upon Kailash Nath Gupta Vs. Enquiry Officer, (R.K. Rai),

Allahabad Bank & Ors (2003) 9 SCC 480, Dev Singh Vs. Punjab

Tourism Development Corporation Ltd. & Anr. (2003) 8 SCC 9,

Ex. Naik Sardar Singh Vs. Union of India & Ors. AIR 1992 SC 417,

Union of India & Ors. Vs. Giriraj Sharma AIR 1994 SC 215 and

Ranjit Thakur Vs. Union of India (1987) 4 SCC 611.

11. The petitioner has also relied upon a Division Bench

judgment of this Court as reported in Ex.Sepoy Sube Singh Vs.

UOI and Ors., 140 (2007) DLT 26 DB, where it has been held as

under:

"We are of the view that the minimum which the petitioner must be held entitled to, is the service pension and other benefits due upon completion of the 15 years of service in the Indian Army. This can be achieved by directing that instead of the petitioner's discharge taking effect on the date mentioned in the impugned order, the same shall take effect on the date he would have completed 15 years of pensionable service. Consequently, the petitioner's discharge pursuant to the impugned order of discharge shall be deemed to have taken effect from 21st October, 2002. The extended period of service will not however entitle the petitioner to any arrears of salary, but for purposes of all retiral/pensionary benefits, the petitioner shall be deemed to have completed his pensionable service as on the date of his discharge. The respondents shall in consequence of the above, process the petitioner's case for payment of pension and ensure that the same is released to the petitioner expeditiously but not later than six months from the date of the pronouncement of this order."

12. In the present case, two basic questions arise for

consideration:

i) There is nothing on record to prove that a show cause

notice was issued to the petitioner before imposing major

punishment of dismissal upon him as is required by Sub-

Rule 10(ii) Sub-Clause (b) of Rule 34 of the CISF Rules

framed under the Act.

ii) The allegation made by the petitioner that the

relevant Office Order which is alleged to have been violated

by the petitioner is not an order issued by the competent

authority or by an authority empowered to issue such an

instruction.

13. Insofar as the first objection taken by the petitioner

regarding existence of Sub-Rule 10(ii) Sub-clause (b) of Rule 34 of

the CISF Rules requiring issuance of a show cause to be issued to

the petitioner before awarding the major punishment of dismissal

is concerned, the respondents in their written submissions have

pointed out that the aforesaid Rule, as it existed when the

punishment was ordered, did not provide for issuance of any

show cause notice prior to imposition of a major punishment to

the accused if the disciplinary authority on the basis of the

evidence, which has come on record, is of the view that a major

punishment can be imposed upon an accused, i.e., the petitioner

in this case. Insofar as the first objection taken by the petitioner

regarding non-issuance of a show cause notice before imposing

the penalty of dismissal relying upon sub-rule 10(ii) sub clause B

of Rule 34 CISF Rules, 1969 is concerned, the respondents have

placed before us a copy of the amended Rules which was

applicable at the relevant time and which does not require

issuance of any show cause notice. The Rules were amended on

28.11.1981 vide G.S.R. 1109 by the Central Government pursuant

to powers conferred upon them under Section 22 of the Central

Industrial Security Force Act, 1968. According to the amended

Rules for sub clause (ii) of sub-rule 10 of Rule 34 following had

been substituted:

„‟(ii) If it is of the opinion that any of the penalties specified in clauses (a) to (d) of rule 31 should be imposed, such penalty may be imposed on the basis of evidence adduced during inquiry and it shall not be necessary to give the member of the Force any opportunity of making representation on the penalty proposed."

14. In view of that reliance placed by learned counsel for the

petitioner on sub rule 10 (ii) sub clause B of Rule 34 of the CISF

Rules, 1969, which stood amended, is of no consequence and as

such the first point raised by the petitioner is rejected.

15. However, insofar as the second point is concerned, the

offence committed by the petitioner is only in relation to the

office order issued by the Commandant. There is nothing on

record which may go to show that the said office order had any

sanction of the rule making authorities or that of the statute.

Thus, violation of the said office order, which is in the nature of

an administrative instruction, is not supposed to attract the

penalty of dismissal imposed upon the petitioner even though he

suffered some punishment earlier, more so, because having more

money in one's pocket though may be violative of the office order

issued by the Commandant does not ipso facto mean that the

said money was money received by the petitioner illegally or was

a proof of corruption. Thus, the punishment of dismissal imposed

upon the petitioner has to be declared as disproportionate to the

crime committed by the petitioner for the simple reason that the

power available with the Commandant under Section 8 of the Act

to dismiss an incumbent from service cannot be directed for

violating office order which does not have a sanction of any

statute or the Rules framed by the Central Government and is

only violation of an office order issued by the Commandant at his

own level. This point, though raised by the petitioner before the

inquiry officer, the appellate authority, the revisional authority as

well as before us has not been satisfactorily explained and

replied by the respondents. The only justification given is that no

proper explanation was furnished by the petitioner about

possessing higher amount than permissible and having not

disclosed the possession of the entire amount at the first go.

However, in this regard the enquiry officer has simply brushed

aside the explanation furnished by the petitioner with respect to

the possession of the higher amount, which it is stated, was a

balance returned to him by the medicine vendor out of a note of

Rs. 50/- which was given by the petitioner to the said vendor for

the purchase of medicine.

16. In these circumstances, we are of the considered view that

the punishment imposed upon the petitioner dismissing him from

service is disproportionate to the second charge proved against

the petitioner and requires interference by this Court while

exercising its power under Article 226 as the said punishment is

disproportionate to the alleged violation, i.e., having more money

in one's pocket than as provided by the Office Order issued by

the Commandant himself having no sanction of either the Act or

the Rules framed thereunder. However, taking into consideration

the period which has elapsed since the impugned order dated

16.01.1987 was passed, we are of the view that it would be

appropriate to mould the relief which can be granted to the

petitioner taking into consideration the judgment delivered by a

Division Bench of this Court in Sube Singh's case (Supra), i.e., to

convert the punishment of dismissal into that of the compulsory

retirement but with a direction that the petitioner will be deemed

to be in service till such time he attains pensionable service.

17. This direction is necessitated taking into consideration the

fact that the petitioner joined CISF in 1977 and continued to

serve the respondents at least till 16th of January, 1987 when he

was dismissed from service and further his appeal and revision

were dismissed only on 16th of September 1988. While passing

the aforesaid directions, we are constrained to observe that even

the Appellate Authority has not dealt with the legal pleas raised

by the petitioner, as aforesaid. The Revisional Authority has

simply dittoed the order passed by the appellate authority

without even dealing with the submissions, as aforesaid. In view

of the aforesaid conclusion drawn by us, there is no need to

discuss other judgments cited by the petitioner.

18. A writ of mandamus is issued thereby directing the

respondents to treat the petitioner in service and have

compulsory retired from service on completion of pensionable

service with the entitlement of pension and other retiral benefits

from such notional date of retirement without any back-wages.

The retiral benefits because of the back wages and the arrears of

pension pursuant to this order be remitted to the petitioner within

a period of three months from today.

19. The petition is allowed in the aforesaid terms leaving the

parties to bear their own costs.

MOOL CHAND GARG, J

SANJAY KISHAN KAUL, J

NOVEMBER 17, 2008 sv/ag